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EXHIBIT 10.17
SUPPORT AGREEMENT
This SUPPORT AGREEMENT dated as of August 27, 1997 (this "Agreement"),
is made jointly and severally by Xxxxxxx X. Xxxxxxxxx, Xxxx Xxxx and Xxxxxx
Xxxxxxx, each in their individual capacities (collectively, the "Support
Parties" and individually, a "Support Party"), in favor of Crescent Operating,
Inc., a Delaware corporation (the "Company") as a material inducement to
NationsBank of Texas, N.A. ("Bank") to enter into that certain Credit Agreement
(as it may be renewed, extended, amended or restated, the "Credit Agreement")
dated the date hereof by and between Bank as Lender and Company as Borrower.
(Capitalized terms used in this Agreement shall have the meanings assigned to
them in the Credit Agreement, unless the context hereof otherwise requires or
provides.)
PRELIMINARY STATEMENT. In order to induce Bank to enter into the
Credit Agreement, (i) Company has agreed to use its best efforts to complete a
Successful Rights Offering, and (ii) Support Parties have agreed to enter into
this Agreement.
In consideration of the premises, the Support Parties do hereby
jointly and severally agree as follows:
SECTION 1. Support Obligations.
(a) Promptly upon notice from Bank to the Support Parties that
Company has not provided evidence to Bank that a Successful Rights Offering has
been completed prior to the Required Completion Date, Support Parties
unconditionally agree to purchase from Company, and Company unconditionally
agrees to sell to Support Parties, a sufficient number of shares of Company's
common stock, at a cash purchase price per share equal to the [average closing
bid price of Company's common stock during the ten (10) days immediately
proceeding such notice], in order for Company to complete a Successful Rights
Offering. (As used in this Agreement, the term "Required Completion Date"
shall mean the earlier to occur of: (ii) an Event of Default which has not been
cured or waived in writing by Bank, or (ii) the Target Date. As used in this
Agreement, the term "Target Date" shall mean August 27, 1998; provided that, if
Company elects to extend the Termination Date in accordance with the terms and
conditions of the Credit Agreement to August 27, 1999, "Target Date" shall mean
January 31, 1999.)
(b) Bank shall have the right in addition to such other remedies
as may be available to it by virtue of the occurrence of any Event of Default,
to injunctive relief to enforce this Agreement and none of Support Parties, or
their employees, attorneys, agents or representatives shall urge that such
remedy is not appropriate under the circumstances, it being expressly
acknowledged by each of the Support Parties that such action shall cause the
Bank irreparable damage for which legal remedies are inadequate to protect the
Bank. It shall not be necessary for Bank to first enforce any of its rights
and remedies under the Credit Agreement, in order to enforce this Agreement.
This Agreement is intended to be an irrevocable, absolute, continuing
agreement. This Agreement may not be revoked by Support Parties, or any of
them, and shall continue to be effective with respect to any of the Obligation
arising or created after any attempted revocation by Support Parties, or any of
them, and after any Support Party's death (in which event this Agreement shall
be binding upon such Support Party's estate and such Support Party's legal
representatives and heirs).
(c) The fact that at any time or from time to time the Obligation
may be increased, reduced or paid in full prior to shall not release, discharge
or reduce the obligations of Support Parties, or any of them, hereunder. This
Agreement may be enforced by Bank and any subsequent holder of the Obligation,
and may be enforced by Company (acting alone or together with Bank or any such
holder), and shall not be discharged by the assignment or negotiation of all or
part of the Obligation, or by any amendment, modification, waiver, release or
other action with respect to the Credit Agreement or the Loan Papers (none of
which shall require notice to or consent by any of Support Parties), it being
intended by Support Parties that their obligations under this Agreement be
continuing and irrevocable.
SECTION 2. Representations and Warranties. Each Support Party
hereby represents and warrants as follows:
(a) This Agreement is the legal, valid and binding obligation of
such Support Party, and is enforceable in accordance with its terms;
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(b) The value of the consideration received and to be received by
Company and such Support Party in connection with Bank's entering into the
Credit Agreement is reasonably worth at least as much as the liability and
obligations of such Support Party hereunder, and the incurrence of such
liability and obligations in return for such consideration may reasonably be
expected to benefit such Support Party, directly or indirectly.
SECTION 3. Term. This Agreement is a continuing agreement which
shall remain in effect until the full, final and indefeasible payment of the
Obligation after the Termination Date.
SECTION 4. Amendments; No Waiver; Remedies. No amendment or
waiver of any provision of this Agreement nor consent to any departure by any
of the Support Parties therefrom shall in any way be effective unless the same
shall be consented to in writing and signed by Bank. No failure on the part of
the Bank to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided under the Credit Agreement or by law or in
equity.
SECTION 5. Notice. Unless specifically otherwise provided, any
approval, consent, demand, notice, request or other communication under this
Agreement to any party under this agreement or to Company or to Bank must be in
writing (which may be by facsimile transmission if a facsimile number is
provided herein for such party and if, without affecting the date such
facsimile transmission was actually made, subsequently confirmed by delivery or
mailing in accordance with this paragraph) to be effective and shall be deemed
to have been given on the day actually delivered or, if mailed, on the third
Business Day after it is enclosed in an envelope, addressed to the party to be
notified, properly stamped, sealed and deposited in the appropriate postal
service. Until changed by notice pursuant hereto, the address (and facsimile
number, if any) for each party is set forth below:
Xxxxxxx X. Xxxxxxxxx or Xxxx Xxxx: Company or Xxxxxx Xxxxxxx: Bank:
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000 Xxxx Xxxxxx, Xxxxx 0000 c/o Crescent Operating, Inc. NationsBank of Texas, N.A.
Xxxx Xxxxx, Xxxxx 00000 000 Xxxx Xxxxxx, Xxxxx 0000 000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxx, Xxxxx 00000 Xxxx Xxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxxx
SECTION 6. Successors and Assigns. This Agreement shall be
binding upon the each of the parties hereto, and their successors and assigns,
and shall inure to the benefit of and be enforceable by Company and by Bank and
their successors and assigns.
SECTION 7. Governing Law. This Agreement is a contract made
under and shall be governed by, and construed, interpreted and enforced in
accordance with, the laws of the State of Texas.
SECTION 8. Multiple Counterparts. This Agreement may be
executed in a number of identical counterparts, each of which shall be deemed
an original for all purposes and all of which constitute, collectively, one
agreement; but, in making proof of this agreement, it shall not be necessary to
produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
/s/ XXXXXXX X. XXXXXXXXX
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XXXXXXX X. XXXXXXXXX
/s/ XXXX XXXX
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XXXX XXXX
/s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
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The foregoing Support Agreement is hereby accepted
as of the date first above written:
BANK:
NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. XxXxxxxx, Senior Vice President
COMPANY:
CRESCENT OPERATING, INC.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx, Vice President and Secretary
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